In giving a reference for an ex-employee, an employer can refer to allegations of misconduct or poor performance that were not investigated due to the timing of the employee's departure, provided the reference makes clear that the allegations have not been investigated and that no assumptions should be made about what the outcome would have been.
Indeed if the employer is providing a reference including more than dates and job titles, it may need to include such details to avoid being misleading. Any comment made should be true, accurate and fair. It may also be helpful to set out what the likely course of action would have been if the allegations had been upheld, particularly if this would have been a lesser sanction than dismissal. (Jackson v Liverpool CC, CA).
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Steve Bell
Managing Partner - Employment, Industrial Relations and Safety (Australia, Asia), Melbourne
Emma Rohsler
Regional Head of Practice (EMEA) - Employment Pensions and Incentives, Paris
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